Thursday, May 26, 2005

The Abe Fortas Filibuster

The recent brouhaha over judicial filibusters has featured Republicans claiming that the practice was completely unheardof prior to GWB's first term. Meanwhile, Democrats were claiming the filibuster has always applied to judcial appointments, and besides the Republicans started it anyway by filibustering Abe Fortas. Perhaps not surprisingly, neither of these is true.

We remember the Fortas nomination from when we were in high school, back in 1968, but some details are cloudy. To fill in the blanks and for those not quite so long in the tooth there is Wikipedia, a useful, although left-leaning resource.

Fortas was an old buddy of President Lyndon B. Johnson, and had already been appointed by LBJ in 1965 to the SCOTUS as an associate justice. In June, 1968, when Chief Justice Earl Warren resigned, LBJ had already dropped his re-election bid in the face of a stiff primary challenge from Eugene McCarthy on an anti-war platform. Hubert Humphrey and Richard Nixon were facing off in an election in less than 6 months and LBJ was already a "lame duck." It was Sept 25, just days before the presidential election, by the time the nomination reached the floor of the senate. Ducks don't get much lamer than that.

After Warren's resignation LBJ nominated Fortas for Chief Justice, and that put the hay down where the horses could get it.
"However, Fortas' confirmation by the United States Senate was in trouble. He had accepted $15,000 for speaking engagements at the American University law school. While not illegal, it raised much criticism about the court's insulation from private interests. The nomination set off a four day filibuster led by Republicans and southern Democrats ('Dixiecrats'). A 'cloture' motion to end the filibuster failed. At that time, 66 votes were needed to stop debate. The vote was 45-43, with 10 Republicans and 35 Democrats voting for cloture and 24 Republicans and 19 Democrats voting against cloture. The 12 other remaining Democrats were not present. Fortas then withdrew his name from consideration.
Obviously, from Wikipedia's account the filibuster was a bipartisan affair on both sides. The anti-filibuster camp had 29% of the Republican senators. Of the Democrats who voted on cloture 35% supported the filibuster. Those voting against cloture were 56% Republican vs. 34% in the Senate overall. Furthermore, there is the mysterious "absence" of another 12 Democrats at the time of the vote. In most cases this was deliberate avoidance of the vote, with the senator neither wishing to vote against the president's choice nor for Justice Fortas. Without the support of about 30 Democrats, direct and tacit, there would have been no filibuster.

Even today $15,000 speaking engagements are nice work if you can get it. In 1968, $15,000 was a reasonable family income for a year, and the Fortas nomination was not popular. After his withdrawl Fortas retained his associate justice post for another year, but the story was not over:
"In 1969, a new scandal arose. Fortas had accepted a $20,000 fee from a foundation controlled by Louis Wolfson. Wolfson was a financier who was under investigation for violating Federal securities laws. He was later convicted and spent time in prison. Wolfson was also a friend and former client of Fortas. Under intense congressional scrutiny, including a threat of impeachment, Fortas resigned from the court."
Wikipedia also links to an article by John Dean, Counsel to President Nixon during the Watergate affair. Although he served in a Republican administration, he's obviously not a Republican now. The article is useful for the chronology of events, drawn from The New York Times issues of the day. Dean assures us the record according to The Times is realiable by noting that similar stories ran in The Washington Post and The LA Times. Obviously unbiased, then.
"The Editorial Page of the New York Times weighed in on September 27 on the filibuster issue. It observed that '[b]ehind the developing filibuster are strong undertones of politics, spitefulness and racism. . . . The real leaders of the filibuster are those old guard Southerners, Senator Eastland of Mississippi and Senator Thurmond of South Carolina. . . . These Southern bigots must be pleased indeed that the more respected Senators are serving as their cats'-paw in the case against Mr. Fortas.'"
In those days The Times actually considered anti-semitism to be racism. The Times also shows it's above partisanship by attacking Democratic conservatives as well as Republican conservatives.

But let's take it as fact that the Fortas case was a filibuster of a Supreme Court nominee. Dean's case appears well-documented. Dean is on shakier ground when he claims the filibuster is the entire reason for the defeat of Fortas' nomination.
In short, Fortas was defeated by the filibuster. He was not able to put together the votes to invoke cloture, and end the filibuster. And the matter ended there.

Because that was how it ended, historically, no one will ever know for certain if the White House had, or could have twisted arms to get, a simple majority against Fortas, as the revisionists now claim.
While we will never know with absolute certainty, since the vote was never held, Dean is overreaching here. Dean quotes Sen. Orrin Hatch saying that former Sen. Robert Griffin, who led the opposition to Fortas, claimed he had a majority opposed to confirmation. He was certainly in a better position to know that than Dean or any of the other sources Dean cited. LBJ had only days left in his presidency at that point. He no longer had the power to bend the Senate to his wishes or the will to fight a losing battle.

The information in the Wikipedia and Dean articles themselves show that a solid, bipartisan majority of senators just wanted the whole thing to go away. That's the way I remember the story playing at the time, too. Fortas barely got a majority for cloture and well under 50 votes. Twelve Democrats ducked out on the cloture vote. The filibuster was a way to make the nomination go away without an outright rejection, which would be even more humiliating.

So Republicans said the recent Democratic filibusters of judicial nominees are completely unprecidented in 214 years of Senate history. That is apparently not correct. Fortas was filibustered by a bipartisan opposition, and never received 50 votes for cloture, let alone the 66 needed.

The correct statement should be, "The recent Democratic filibusters of judicial nominees are almost without precedent. In the previous 214 years there has been only one other judicial filibuster, and that was 37 years ago. It was bipartisan on both sides. It lasted 4 days." One might even describe Fortas' ethics issues as "extraordinary circumstances."

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UPDATE 5/29: See second post on this topic here.

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